Mens Rea

Question 1

Mens rea:

Answer 1

Actus non facit nisi mens sit rea
An act does not make a person guilty unless their mind also be guilty

Actus non facit nisi mens sit rea

The actus reus alone does not make a person guilty → Their mind has to also be guilty

In other words → we need mens rea

And so what mens rea is intended to do

In theory → is to show that the accused demonstrated a level of moral fault → which is sufficient to make a criminal conviction appropriate

In New Zealand → we have different types of mens rea

Question 2

Different types of mens rea:

Answer 2

•Intention
•Knowledge
•Recklessness
•Negligence
•Strict liability
•Absolute liability

Some of these types of mens rea are subjective → and some are objective

Listed above from the most hard to prove and most serious → down to the least significant

Intention is highest form of mens rea → to prove it beyond reasonable doubt is difficult

Knowledge → is probably of the equivalent of intention → but for circumstances

Then we have got recklessness → consciously running a risk →

those are our subjective forms of mens rea above → where you have to prove that the defendant personally had that state of mind → regardless of whether other people did

Then we’ve got negligence → which is whether they’ve fallen short of the standard of a reasonable person

Strict liability → is really negligence with a reversed onus of proof

Absolute liability offences → are ones which don’t require proof of mens rea at all

If you prove the actus reus → that’s enough

Question 3

•What type of mens rea is required depends on the particular offence

Answer 3

•Common law presumption of mens rea: most serious offences tend to have subjective forms of mens rea
•Identifying mens rea: Wilful, intends, with intent, intentionally, knowingly, recklessly, fraudulently, without lawful excuse, permits, corruptly. For eg:
•Section 188 Crimes Act: Wounding with intent
•Section 228 Crimes Act: Dishonestly taking or using a document

Generally the most serious offences → Carry the highest levels of mens rea

So if you look at murder under s167 → we require intention or recklessness as to death

In other words → we are not going to place the label murderer on someone unless they deliberately tried to kill someone ⇒ or consciously ran a very high risk of killing someone

Only then → do they deserve the moral stigma of the word murderer → And the penalties which follow on from it

If its an accidental killing → depends on if they were prepared to do something that was dangerous → but we are not going to put the label murderer on them

Generally the more serious offences ⇒ require the highest levels of moral fault

When you look through the Crimes Act → many provisions (there are exceptions to this) don’t set out the level of mens rea required

Murder is an exception

You will often just see a description of behaviour and circumstances → but the common law presumes that mens rea is required

And it presumes subjective mens rea generally

Even if the legislature doesn’t require it → The Courts will generally require it

They will give effect to this common law presumption that subjective mens rea is required

There are words that indicate that mens rea is required → even though they don’t necessarily always specify exactly what kind of mens rea is required

But willful → for example → means that mens rea is required → wilful essentially means intentional

And you can see → also → provisions that specifically require intention

Example section 188 of the Crimes Act → creates the offence of wounding with intent → So intention is specifically required

You can see words like → knowingly, recklessly, → It’s clear what they require

Fraudulently → actually requires a mens rea process →

Permits → requires one

Doing something corruptly, being dishonest → these are words that imply some form of mens rea

So when you are looking at a provision → you want to ask yourself → what mens rea standard is required for every element of the actus reus

Each element of the actus reus → might have a mens rea requirement accompanying it → even if not expressly → it might be presumed by the Courts

There can also be mens rea that goes beyond the actus reus → for example → causing actual bodily harm with intention to cause grievous bodily harm → so you have the actus reus of actual bodily harm → and you have the mens rea in relation to causing actual bodily harm

And you have this further intention → you were meaning to do something more which you didn’t actually achieve

So it’s not part of the actus reus → but your mens rea goes beyond the actus reus

And then the question becomes → whether the defendant actually had the mens rea? → which is something that has to be established beyond reasonable doubt on the facts

For less serious offences → negligence might be sufficient for a conviction

Question 4

Essential questions:

Answer 4

•What mens rea standard is required for each element of the actus reus?
•Are additional mens rea standards specified?
•Did the defendant act with the mens rea required? If the mens rea standard is subjective, what facts give us insight into the defendant’s state of mind at the time they committed the actus reus?

Question 5

Subjective versus objective mens rea:

Answer 5

•Subjective – need to prove that the accused actually had a certain state of mind. Does not matter what most other people would have thought or known had they been in the defendant’s circumstances – the issue is whether the accused actually had that state of mind. Eg, intention, knowledge, recklessness
•Objective – The defendant is held to a standard external to themselves. The accused is judged by the state of mind that someone else (for example, the hypothetical reasonable person) would have had. Eg, negligence

At common law we have seen → that there is a distinction drawn between civil negligence and criminal negligence

Criminal negligence → is way more serious than civil negligence → its gross negligence, major negligence, wicked negligence → it’s not just an ordinary human mistake

A mistake which demonstrates a level of callousness towards the well being of others

Some people argue that its almost like a form of mens rea → that your so careless that you obviously really sort of don’t care about other people

It kind of reveals a mens rea state of not caring about other people essentially → it does sort of reveal a subjective state of mind → It’s that level of carelessness.

The Courts have quite happily interpreted statues → if a negligence standard is set up and it’s not clear that the negligence required is major

The courts have been quite quick to assume that the legislature has overturned the criminal standard → and it’s only requiring civil negligence → we saw that already in Yogasakaran → but changed with 150a

The difference between subjective mens rea standards → when talking about a subjective mens rea standard we have to prove that the accused → actually had that particular state of mind

They actually were thinking that at the time → does not matter somebody else in their position would have done → the issue is whether they had that state of mind

Our subjective mens rea standards are → intention, knowledge and recklessness

Where Objective standard → the accused is being measured according to a standard external to themselves

We are asking → what would the reasonable person have foreseen

And if they fell short of that standard

In New Zealand we have very technical meanings to mens rea → despite association between mens rea and moral fault → we are not requiring a normative assessment of moral fault

We just have particular states of mind that we have to prove on the facts

And the meanings are very particular to the New Zealand context

So when reading English cases → be super careful → dont assume you can extrapolate from England to New Zealand → because England has gone down strange pathways which we haven’t gone down

For example → at one point England merged negligence and recklessness → so you could prove recklessness by proving either recklessness as we understand it or negligence

We have never done that → we have always had recklessness as a very distinct subjective state of mind → consciously running a risk → it has never been merged with negligence for us

England also doesn’t have strict liability offences → NZ does → our Courts have been more willing to invent things than the English Courts have

So what they call strict liability in England is actually absolute liability in the NZ sense

Meaning in NZ → when reading English cases be aware that they may not use the terms the way we use them

Question 6

Intention: Definition:

Answer 6

1.Purpose, desire to bring something about, whether or not success is thought to be likely
2.Knowledge that a result is virtually certain, even if it is not the accused’s purpose or desire to bring it about

Difference between motive and mens rea → you can act with the best of motives and still have mens rea → motive is something quite different

For example in relation to Euthanasia → imagine its before we had formal process of Euthanasia → mother died of leukaemia → she actually died from pneumonia → didnt have enough white blood cells to fight pneumonia so its how people with leukaemia often die

Die over a period of four days and had to drown in her own lungs

If someone decided to put a pillow over her head → to kill her → avoided the four days of suffering

The person has committed the murder → accelerated her death which means i have caused her death → and fully purposefully, intentionally

That was my purpose or desire → so im guilty of murder

My motive is something very different → motive is the best of motives → child had best of motives

But thats not relevant → only relevant at sentencing

Draw distinction between motives and mens rea

Narrow technical terms → loosely equated with moral fault → but so technical that you can have a motive which means few people would condemn your actions and you still have the moral fault in terms of mens rea

Definition of intention → mental state → may be required in relation to your actions → might have to intentionally rather than accidentally do some actions

Might relate to a prohibited consequence like death for example → it could relate to circumstances although less commonly

Intention → in the New Zealand common law means one of two things → either or →

It means that you have a purpose or desire to bring something about → whether or not you think you are going to be successful is irrelevant → the question is was it your purpose?

So I can have an intention to kill someone if i shoot at them → trying to kill them even if im a terrible shot → even if i don’t think i’m going to succeed

That is not relevant → the question is it my purpose or desire? Would i be disappointed essentially if it didn’t happen

The second is → the defendant understood the outcome as virtually certain → even if it is not their intention or desire to bring it about

These are situations where you accept it as a certainty even though you don’t want it → basically know its going to happen.

Question 7

R v Moloney [1985] AC 905, per Lord Bridge:

Answer 7

“A man who, at London airport, boards a plane which he knows to be bound for Manchester, clearly intends to travel to Manchester, even though Manchester is the last place he wants to be and his motive for boarding the plane is simply to escape pursuit… By boarding the Manchester plane, the man conclusively demonstrates his intention to go there, because it is a moral certainty that that is where he will arrive.”

Classic example of that is → in the comments by Lord Bridge in R v Maloney

Spoke about a man who at a London Airport boards a plane which he knows to be bound for Manchester → clearly intends to travel to Manchester even though Manchester is the last place he wants to be → and his motive for boarding the plane is simply to escape pursuit

By boarding the Manchester plane the man conclusively demonstrates it’s his intention to go there because it’s a moral certainty that is where he will arrive

We are talking about certainty here → not talking about risk taking

If we’re talking about risk taking then we are in to the domain of recklessness → So we are talking about the thing is going to happen

Virtually certain.

Question 8

NZ authority: R v Wentworth [1993] 2 NZLR 450, per fisher J:

Answer 8

“In a legal context “intention” is normally taken to embrace both ultimate (desired) consequences and incidental (undesired but foreseen) consequences so long as the latter are foreseen with sufficient certainty when the course of action is deliberately embarked upon. “Direct intention” may be used to refer to the former and “oblique intention” to the latter. There is room for argument as to the degree of certainty with which the accused must predict the incidental consequence (.. “virtual” or “moral” certainty is sufficient; query anything less) but in principle both types of intention qualify. Contract killers usually want money, not the death of their victims per se. Receipt of money is the ultimate, desired, consequence. Death of the victim is the incidental, perhaps regretted consequence.”

Our most comprehensive discussion of intention in NZ is found in the authority of R v Wentworth by Justice Fisher

Good jurisprude → fisher → thought things through

Wentworth → case in which a pharmacist sold a large number of Panadeine tablets to someone he knew was a heroin addict → he knew she didn’t have that many headaches

He knew she was an addict → he knew that they were probably going to be used to make home bake → extract the codeine out of the panadeine to make heroin

The question was → Whether he had the purpose of assisting the manufacture of drugs →

He didn’t want heroin to be manufactured he just felt sorry for this addict → realised she was probably under pressure from some heavy people because she had serious addiction issues

And Justice Fisher noted that the word “purpose” → as used in the statute he was applying → he was applying the statute on party liability → said that the word purpose means the same as intention

And he said → in a legal context intention is taken to embrace both ultimate (desired) consequences… (above)

If it is clear that the intended course of action will result in both → both are said to be intended

And he said → letting the accused avoid liability for consequences that they knew they were going to bring about definitely → is to confuse purpose with motive

Both these states of mind are equally morally culpable in his view

Question 9

Some examples:

Answer 9

s200 Poisoning with intent
“…with intent to cause grievous bodily harm to any one, administers to or causes to be taken by any person any poison or other noxious substance.”
A father sets out rat poison under the house. His child eats it and dies

An example section 200 → creates the offence of poisoning with intent

The operative words are → with intent to cause grievous bodily harm to anyone → the defendant administers to → or causes to be taken by any person any poison or other noxious substance

Father example → do you think that they are guilty under section 200?

Their purpose or desire was not to cause the death of their child on those facts → could be extra facts that may change opinion → but generally no purpose or desire to kill child

Oblique intention? → If just an accidental poisoning he is certainly not thinking that his childs going to find it and eat it as a virtual certainty

Virtual certainty doesn’t mean a suspicion or you think theres a risk → it means that you know it’s going to happen

And its unlikely with the facts that we’ve been given that he would have that knowledge either.

Question 10

•Jack sends a package scheduled to travel on a plane flight. The package conceals a bomb designed to go off midflight so Jack can claim the insurance later
•Jack does not want to harm the passengers or crew

Answer 10

We can infer that if they are going to blow up a plane in the sky its a virtual certainty that nobody will survive

So if you intend to blow up the plane mid flight even though it’s not your purpose or desire that you would kill anyone → we can infer that you knew that it was virtually certain to happen.

Question 11

•Would your answer be different if Jack believed in the power of prayer and had asked God to spare the lives of everyone on the aircraft? And he genuinely believed that their lives would be spared?
•
•Is the issue simply that you do not believe Jack?

Answer 11

Does he have the intention to kill everyone on the aircraft?

Jack no longer realises that its virtually certain → because we are talking about a subjective state of mind

If you take that as you believe Jack → most juries will still convict because they will call bullshit

They will say we don’t believe → but if we believe him then the question then the answer is he hasn’t got mens rea anymore → because its a subjective test

So then it will come down to a credibility issue.

Question 12

Note the difference:

Answer 12

1.Whether the consequence was a virtual certainty (objective)
●
2.Whether the consequence was foreseen by accused as a virtual certainty (subjective)

Difference between whether the consequence is in fact objectively a virtual certainty → which it obviously is

And whether it was foreseen by Jack –> this is the one that we are concerned with when we are talking about intention

But we still have credibility issues → Whether juries will believe people is another issue.

Question 13

How do you infer a subjective state of mind?

Answer 13

•There is no legal rule that a person is presumed to intend the natural and probable consequences of their actions: R v Noel [1960] NZLR 212

•However, if a risk is very obvious to the jury this may impact how much credibility they assign to the accused’s claim that they did not foresee it

The answer is you can’t replay what people were thinking in their minds like its a movie

So we don’t know what they were actually thinking → and many defendants are going to show up saying no → I had no idea → sorry that was stupid but it never occurred to me

So in the absence of a confession you are going to have to infer what is going on

And the prosecution has the burden of proving mens rea in most instances → beyond reasonable doubt

If there is a plausible narrative that they didn’t have the mens rea → you have to acquit

Obviously we are going to infer what was really happening in their mind from things that they said and did in the circumstances and what we think is plausible in those circumstances

There is older English authority suggesting that a person can be presumed to intend the natural and probable consequences of their actions. →

The New Zealand case law has been very clear from 1960 in the case of Noel → that there is no such rule of law in New Zealand

It is not a principle of law → that a person is taken to presume the natural and probable consequences of their actions.

However → if a risk is very obvious to the jury → obviously the defendant is going to have to pretty credible in saying that they didn’t see it

So it becomes a bullshit detector → what is natural and obvious → but its not a legal principle

Believability barometer.

Technical meaning of mens rea states

Question 14

Knowledge: Definition:

Answer 14

•“Accepting, assuming or having no serious doubt.”
•Not just suspecting.

Generally knowledge is the equivalent of intention → when we are talking about circumstances

Because generally if talking about circumstances → it is not the defendant is intending those circumstances → it isn’t their purpose or desire of the defendant → so what we generally require is knowledge of those circumstances

For example → the person that you are having sex with is under 16 → that is a circumstance in which your action → having sex is occurring → the sexual partners age → generally people are not intending to have underage sex → the issue is do they know that their partner is underage?

Most people are doing these actions without an actual desire → but still culpable if they are aware → if they know

Knowledge of prohibited circumstances → generally the equivalent to intention with regard to consequences and actions →

and it requires subjective awareness on the defendant → to the highest degree possible

Greater than the conscious risk taking that would amount to recklessness

What we generally require in relation to knowledge → is we require accepting or assuming or having no serious doubt → not just suspecting or thinking that there is a risk → it is accepting, assuming or having no serious doubt about that

So it is higher than recklessness → And the authority for that is the case of Crooks

Question 15

R v Crooks [1981] NZLR 53:

Answer 15

“Belief is the result of a subjective evaluation of evidence or information which has produced acceptance of a proposition, or of the existence of a set of facts. Where a belief is founded not upon evidence or information from other persons but is derived from intuitive assessment of a set of circumstances, then it is not in the true sense a belief at all. It is only an opinion or, in the present context, a suspicion, and the fact that a receiver merely suspects goods to be stolen cannot make him liable.”

The Court said in relation to knowledge → knowledge is higher than recklessness

Belief is the result of a subjective evaluation of evidence or information which has produced acceptance of a proposition…

Dealing with receiving goods that you know to be stolen → the fact that a receiver merely suspects goods to stolen cannot make him liable

Have to know they are stolen and you have to believe they are stolen → it has to be more than a suspicion essentially.

Question 16

Forgotten memory: Martin v Police (1987) 3 CRNZ 373:

Answer 16

“Criminality or want thereof is not to be determined by the lottery of the timing of apprehension, and in terms of whether memory is oscillating between conscious recall and unconscious mental storage. The nature of the type of case and of the defence of absence of knowledge requires a more specific evaluation of the nature of the defendant’s absence of recollection. In order for the defence to succeed there must be a total absence of memory.”
(Note older NZ case: Police v Rowles [1974] 2 NZLR 756 and Eng decision: R v Martindale [1986] 1 WLR 1042)
Question = completely extinguished or just not at the forefront of the mind?

What if you knew something once and you forgot about it → for example at the time you don’t have any knowledge or belief about it because you have completely forgotten

Typically this issue arises in offences of possession → possessing drugs

For example drugs are in my pocket → i haven’t got possession of them even though i have physical custody of them unless i know that they are there → so possession implies knowledge

So nobody can slip them into my pocket and therefore i am guilty of a very serious offence of possession → I have to be aware that I have got them

What typically arises in this context when someone is charged with possession is they say → i have completely forgotten about those → are they still possessing those if they have forgotten about those?

That is how the issue of forgotten knowledge generally arises.

In England and Wales → The Courts have concluded that →

forgotten knowledge or possession is not exculpatory → so as long as you knew about it at one point that is enough

The Rationale for the rule is → that possession does not depend on the possesses powers of memory → possession doesn’t come and go as memory arises and fades

If it were to do so → a man with a poor memory would be acquitted whilst a man with a good memory would be convicted

If we are talking about moral fault that is not necessarily a bad thing → if you don’t know that you have got something, are you really morally at fault?

You may have possessed it in the past when you did know about it → but in most forms of subjective mens rea → the moral fault is having the state of mind → and we don’t judge people where because of their reduced faculties they don’t have that state of mind or moral fault

The Courts in NZ haven’t gone the above pathway → rather they say that when someone forgets something → as long as they have completely forgotten about it → they no longer know about it

Once i have totally forgotten about it → i am no longer in possession of it → in NZ

In Police v Rowles → Justice Mann determined that —> the extinction of conscious knowledge whether caused by mistaken belief or fault of memory → would be fatal → to the required concept of factual possession accompanied by guilty knowledge

In Rowles → the police had found a tiny amount of cannabis resin → in a butt → in a matchbox → in a tin → in a cabinet → at his parents house’

But he said → I had no idea → i knew i had it some point in the past i thought it had been thrown out and i had absolutely no idea that it was in my custody

And the question was → whether he possessed it?

The magistrate concluded that → he may have forgotten about the cannabis resin → which meant it had not been proven beyond reasonable doubt that he had current knowledge of it and therefore he had possession of it

In Martin v Police → Justice Anderson added a gloss to this → he said criminal liability shouldn’t depend on the lottery of timing when the defendant was apprehended and where their memory was

In the process of oscillating between conscious recall and unconscious mental storage →

So he said the question is → whether the defendants memory has been completely extinguished

As opposed to from time to time its just not knowledge that is at the front of his mind → he still kind of knows about it its just really not at the front of his/her mind

Martin v Police → police had done a raid → they had found a whole lot of cannabis seeds in some boots → and he said he totally forgot those were in my boots

However once his memory was refreshed → he remembered that the seeds came from different sources → so they were different types of seeds or different types of plants

He shouldn’t have said that to the police → because that was enough to show that his memory wasn’t completely extinguished → it was still there just wasnt at the forefront of his mind

Because when it was tapped into (his memory) → then it sort of resurrected

So the Courts have said that cases must be rare when forgetting something means that there is now a lack of knowledge.

Question 17

Reckless: Definition:

Answer 17

•Knowledge of a risk and the decision to run that risk
•The risk is not socially justifiable

Recklessness in NZ → is a legal term of art

With a meaning that might differ from how you would think about the word in ordinary speech.

Recklessness in law requires → that the defendant was personally subjectively aware of the risk that certain circumstances existed or that their actions would result in a certain outcome

And they chose nonetheless → despite that risk → to act

It is consciously taking a risk → not only that → the risk must be one that it is unreasonable to run

Not a socially justifiable risk → so it’s a deliberate, not socially justifiable risk taking

Its a step down from intention → because it involves a lesser level of moral fault → the defendant is not trying to do this → they might even be hoping it won’t happen

So they are not as bad as someone who is gunning for it → they are only just risking certain things

In New Zealand → it is entirely subjective → it is not enough that the risk was foreseeable to anyone else

That has always been the case in NZ

In England the Court went down a rabbit hole

Question 18

In England: Metropolitan Police Commissioner v Caldwell [1982] AC 341:

Answer 18

Held: Reckless if:
•He does an act which creates an obvious risk that property would be destroyed or damaged; and
•When he does the act he has either not given any thought to the possibility of there being any such risk or has recognised that there was some risk involved and has nonetheless gone on to do it
•
Merges recklessness and negligence

England → went down a particular pathway and then sort of came back the NZ position on recklessness

A majority of the HOL in the case of Metro Police Commissioner v Caldwell → held that recklessness required that the defendant firstly did an act which created a obvious risk

In this case → it was arson

An obvious risk that property would be destroyed or damaged → and secondly when he does that act he is either not given any thought to the possibility of there being any such risk

Or he has recognised that there was some risk involved and he has nonetheless gone on to do it

So basically you can see that part of that → one way of satisfying that test → is objective → there is an obvious risk and you haven’t even thought about it

That is a negligence test → you are being measured by a standard external to yourself → what somebody else in your circumstances would have thought

So a really obvious risk that you went ahead with anyway → didn’t even think about the risk → so that merges negligence with recklessness

Which is in New Zealand → conscious awareness of a risk

Question 19

Caldwell:

Answer 19

Not followed in NZ: R v Harney [1987] 2 NZLR 576 (CA) said:
“Subject to the requirements of particular contexts, however, we incline to the view that “recklessly” has usually been understood in New Zealand to have the meaning given in pre-Caldwell textbooks… That is to say, foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of the risk.”
No longer the law in England: R v G [2003] 4 All ER 765

So our CA → in the case of R v Harney → chose not to follow the line of authority in Caldwell

So we always stuck with subjective recklessness

CA in 1987 → we inclined to the view that recklessness → recklessly has usually been understood in New Zealand…

And even in England Caldwell is no longer good authority → so finally the HOL overturned that decision in R v G →

R v G → involved child defendants → and the HOL realised how harsh the test would be if talking about kids → young people, children often go through a developmental phase where they are not able to see the consequences in the same way that adults would

Their brain closes for renovations → sometimes see the consequences but often cant

The Court in R v G → realised that if you interpreted recklessness to include negligence that was going to be very harsh for young people

If you are trying to attribute moral fault → you just ask were they consciously running a risk → that is a better test of whether they had moral fault in their choices → than weather they failed to foresee a risk that was obvious to other people → because they may not be able to foresee a risk thats obvious to other people in different stages of development

Question 20

R v Cameron [2017] NZSC 89:

Answer 20

Recklessness is established if:
(a) The defendant recognized that there was a real possibility that:
(i) His or her actions would bring about the prescribed result; and/or
(ii) That the prescribed circumstances existed; and
(b) Having regard to that risk those actions were unreasonable

In R v Cameron → The Supreme Court summarised the meaning of recklessness

They said recklessness is established if the defendant recognised there was a real possibility → that his or her actions would bring about the proscribed result

Or/and → the prescribed circumstances existed

And having regard to that risk those actions were unreasonable

So that is the socially acceptable risk component of it.

Question 21

Recklessness:

Answer 21

•Did the accused foresee the risk of committing the actus reus? (subjective)
•
•Was the risk unjustified? (objective): Cameron v R [2017] NZSC 89, [74], [97]
§Had the defendant acted as a reasonable and prudent person – that is, as a law-abiding person doing their best to comply with the law – would have done?
§What kind of risks might be justified?

In most instances there is no direct evidence of the defendant’s state of mind and mens rea must be inferred from what the defendant did or said in the context.

Inferring a subjective state of mind….

Did they foresee the risk → that is subjective

Was the risk unjustified → that is an objective appraisal

The reality is you very rarely see case law → on this notion of an unjustified risk

Often because the police don’t prosecute if it the risk is a socially justified risk

So it never really comes up for discussion → in the case law

What kinds of risks might be socially justifiable → where you might find the police don’t lay charges → or if they did lay charges recklessness would be dismissed

For example risk of death or serious harm → Like really risky surgeries → if they don’t have the surgery their life is going to be severely impacted or shortened → but the surgery might be super risky

You might have a surgeon there with recklessness as to death → and if things go wrong you could potentially have a homicide → but you most likely never have a prosecution

And if there was → even if the surgeon had recklessness as to death → its a socially justifiable risk

Another pathway for analysis is → victims consent → could be a defence

Multiple pathways for legal analyses

Not much case law → because it is rarely prosecuted.

Because recklessness is also a subjective state of mind → we have the same process of inference

We cant know in fact what the defendant was thinking → so we have to infer what they were thinking

In relation to recklessness → there is a question about how high that risk has to be before you are reckless about it

So you could foresee something as just a really remote possibility → that wont really be recklessness

The level of risk that you have to foresee → Depends on the particular offence that you are dealing with → so if talking about murder → section 167 of the Crimes Act → the risk has to be that death is likely

Likely generally means → probable

So running a risk → that death is probably going to happen → So that is quite a high risk → not a risk that death is a remote possibility

So also a degree of risk that you have to establish → not that you had a suspicion → or you thought it was a remote outcome → you actually knew that you were running a likelihood → a risk that was that high

But we can’t get into peoples heads → and we don’t know what they were actually thinking → and so we have to infer what they are thinking → and that isn’t very obvious

Going to depend on all sorts of things → circumstances, what person said, who they are, how credible they are in the witness box

So therefore very different outcomes → on facts that have some similarity

Question 22

R v Scollay [2014] NZHC 465:

Scollay:

Answer 22

•A woman came home, went into the cutlery drawer and got out a large sharp knife. She turned her husband over, straddled him and stabbed him with a single blow to the chest area.
•Immediately went for assistance.
•Depressed about husband’s long-term depression: Wanted to “wake him, that he would see the knife and he would take you seriously and realise how miserable you were.”
•Charged with murder: Convicted of manslaughter.

Scollay in 2014 → She was a woman who was not enjoying her marriage → her husband was severely depressed

They were both struggling with long term addiction

And he was lying in bed and never getting out of bed

She was out drinking with friends → and she decided that she was going to try shock her husband → into realising just how serious it was

So she → got home went to cutlery draw → got a sharp knife → went to her husband where he was lying in bed

Turned him over → straddled him → and stabbed him in the chest with a single blow of the knife

Then immediately went for assistance → and was hugely distressed and he died from the stab wound

And she said that she was depressed → and she just wanted to wake him up and take her seriously and realise how miserable things were

She was charged with murder → the question was whether she foresaw the likelihood of causing his death when she did this?

Astongishly → the jury said NO

They believed her → the jury believed that she wasn’t thinking at the time that she did this → that there was a likelihood that she would kill him

So she was clearly credible in that account → and there might have been reasons she wasn’t thinking about this

She was drinking → she was depressed and so on → so element of credibility to it

Question 23

Scollay per Mander J:

Answer 23

“I take the view that the jury concluded that the Crown was unable to prove that in your distressed state that you were cognisant of the real risk of death being caused by your action, and that you did not have a conscious appreciation of the lethal consequences that you risked causing by stabbing your husband in the way that you did.”

The sentencing judge said → I take the view that the jury…

That is a pretty → generous outcome on the part of the jury → So were not prepared to convict her of murder on that set of facts

Question 24

See also:

Answer 24

•R v Paton [2013] NZHC 21: → badly brtend by partner for many years, husband attacked her, then she picked up two knives, hesaid go on, then she dropped one, then stabbed him once in the neck with the knife, then went ourside on a journey. → The pataholgist detremined the injury was unsurvivable, stab someone in neck, risk death, however, she was convicted of manslaiggter, becausew she was not aware she could kill him. The sentencing judge said the long history of beatings led her to downplay the risk of events → the jury thought you had such serious violence infliceted that you were dessentsistised to the risks of it.

→ Then compare that to the case of black.
•R v O’Brien CA 107/03, 16 Oct 2003

R v Patton → a woman had been badly beaten by her partner for many years

He had attacked her in the hallway then followed her into the kitchen → and she had picked up two knives → one in each hand → and he said go on you don’t have the guts to do it

She dropped one of the knives and she stabbed him once on the neck with the other knife

And then she immediately left the house → then went on a bit of a journey

The pathologist determined that the → injury inflicted on the deceased was unsurvivable

You stab someone in the neck quite deeply with a sharp knife → most people would not do that without realising that they were risking death

However → she was convicted of manslaughter → on the basis that when she did that she wasn’t aware that she could kill him

The sentencing judge said → the prolonged history of beatings conditioned you to downplay the risks and consequences of violent acts

So that a woman in your position wouldn’t appreciate the risk of causing death → when others who had not experienced the sad domestic history that you had

Could reasonably be expected to recognise that risk

The sentencing judge said —> The jury just thought you had such serious violence inflicted on you for so long → that you were kind of desensitised to the risks of it → you would survive → it never occurred to you that he wouldn’t survive.

And then you can compare that to the case of R v Black

Question 25

Cf R v Black [1956] NZLR 204 (CA):

Answer 25

“in our opinion it is idle to contend that a blow with a knife delivered with considerable force to the nape of the neck was not intended to cause bodily injury to the victim and was not of a nature which must have been known to the appellant to be likely to cause death. The whole of the circumstances, we think, irresistibly compel the conclusion that the appellant was reckless whether death ensued or not.”

Different outcome compared to Patton

Mr Black had gone to a place called Ye Olde Tavern → at the bottom of Queens Street → with jukeboxes and games and coffee and alcohol

He had gone there → and it was a place where bikers hang out → And he had gone there with a knife

Somebody had beaten him up in recent history → and he had gone there carrying a knife on his person

And he had seen that person there → and he had stabbed that person

The knife was five inches long → and plunged it to the hilt → in the neck of this man

The knife had severed the victim’s spinal cord → and got upwards through the bottom of his skull into the back of his nose

The question was → was he reckless as to the victims death?

And he said he wasn’t aware that he was running the risk

And the Court of Appeal said → we don’t believe you

The Court of Appeal → in our opinion it is idle…

Similar sets of situations between Paggett and Black

Differences between these situations → and those differences have gone into this decision → by the fact finder as to whether or not the defendant has recklessness

So there might be → if you have a knife → where the knife goes into the victim → how deep it goes into the victim → Whether it goes into the victim in circumstances that are emotionally overwhelming → where a person may not be thinking properly

Or whether the person has carried the knife to the venue → which kind of implies an element of consideration in the whole process → and the credibility of the defendant when they are put onto the stand if they are

So lots of things can go into that decision making

Question 26

Wilful blindness:

Answer 26

•Suspecting something is the case but not wanting to know and so deliberately refraining from checking. Being purposefully ignorant about something.

What do we mean by wilful blindness → the definition of wilful blindness is a situation where the defendant thinks something might be the case

But they don’t want to know for sure → and so they deliberately refrain from making inquiries

They deliberately don’t check → so they are purposefully ignorant about something

And particularly where it would be quite easy to check and they don’t → going out of their way not to check.

Question 27

Wilful blindness:

Answer 27

•May be evidence from which one could infer recklessness or, depending on the facts, actual knowledge.
•
•Was it just a suspicion or was the failure to enquire so deliberate in the circumstances that one can infer that the defendant really knew the situation?

The Court is the case of Crooks said → that wilful blindness might be evidence from which you can infer either recklessness → or depending on the facts → actual knowledge

It might not → its an evidential thing

Crookes was a case where → the defendant was being charged with receiving goods that they knew to be stolen

They were living with the flatmate → didn’t have a job → suddenly he had piles of cash and lots of alcohol

And so he’d participated with this cash and alcohol → and the question was → did he actually know that it was stolen?

And that is why the Courts were discussing wilful blindness → and they made the point

Which is still a current point in the case law → that sometimes you can infer → by a person going out of there way so obviously not to find out → that we think they already know

They just don’t want to confirm it → so in that case it could be evidence of recklessness or knowledge

It might not be → it might just be that they have a suspicion and they haven’t confirmed it → so you want to be able to infer that they really knew by their behaviour in the circumstances.

Question 28

Negligence: Not taking care:

Answer 28

•Uses the “reasonable person’s” perceptions and reactions as a bench mark. If the accused falls short of that standard they will be liable.
• For example, the legal duties to act or use care (ss 150A and ss 151-157)
•Manslaughter by unlawful act (s 160(2); R v Myatt [1991] 1 NZLR 674; R v Powell [2002] 1 NZLR 666)

What do we mean by negligence?

In Negligence → we are measuring the defendant’s behaviour against the standards of a reasonable person

Measuring them by standards external to themselves → negligence is objective → does not matter what the defendant was personally thinking → not judged according to their own personal state of mind or thought processes.

So its much easier for the Crown to prove → because they just have to prove that a reasonable person in those circumstances would have thought this

And then the defendant if they didn’t meet that standard → has the mens rea.

Not every error of judgement amounts to negligence → only those which were errors that were unreasonable to make in the circumstances

Examples where negligence is the mens rea standard → in relation to the duties, and manslaughter by an unlawful act → the test for dangerous is effectively a negligence test

What reasonable people would foresee in terms of the risk of harm →

Question 29

The difference between negligence and recklessness:

Answer 29

The difference between whether the risk was subjectively held or whether it was objectively held but not subjectively held.

Question 30

Schofield case:

Answer 30

•2001: Matthew Schofield, an investment banker with finance house Merrill Lynch, was found guilty of manslaughter. Schofield admitted to reaching under a toilet cubicle door and setting fire to his colleague’s, Gareth MacFadyen’s, synthetic grass skirt at an office Hawaiian themed Christmas Party in December. MacFadyen suffered burns to 95 percent of his body and died three days later.

Matthew Schofield from 2001

Schofield was an investment banker with the finance house Merrill Lynch → and he was found guilty of manslaughter

He had done this stupid thing at the Christmas Party

He had gone into the cubicles he thought it was funny after drinking → and reached under the toilet cubicle door and set fire to his colleague Gareth McFadden’s synthetic grass skirt

It was a Hawaiian themed christmas party → the skirt was hugely inflammable → McFadden suffered burns to 95% of his body and died three days later

The reason why he was convicted of manslaughter as opposed to murder is that for murder → he would have had to have known that this was what he was risking
And he didn’t → he was drunk and young and stupid → but he was convicted of manslaughter

He had run a risk that a reasonable person wouldn’t have taken in the circumstances

Question 31

Negligence versus recklessness:

Answer 31

•Recklessness – Knowing there is a risk but not caring.
•
Negligence – Not taking care. Running a risk that would have been obvious to a reasonable person in those circumstances

Question 32

Standard of care: civil versus criminal:

Answer 32

A matter of degree:
•
• Civil = standard of care of a reasonable person
•
•Criminal = a major departure from the standard of care of a reasonable person: Gross negligence; criminal negligence; egregious negligence etc

Civil → Standard of care of reasonable person

Civil vs Criminal standard → done before

Question 33

R v Yogasakaran [1990] 1 NZLR 399:

Answer 33

•Sections 151-157
•
•Section 155 “Everyone who undertakes (except in case of necessity) to administer surgical or medical treatment…. Is under a legal duty to use reasonable knowledge, skill and care in doing any such act….”

Yogasakkran → held that if the legislature has set out a standard of negligence in the Crimes Act but hasn’t made it clear that its criminal negligence → then the civil standard applies

And that has been reformed by section 150A.

Question 34

Reform:

Answer 34

•Section 150A “a major departure from the standard of care expected of a reasonable person to whom that duty applies …”

At common law → negligence is going to be a criminal standard

The objective test → is often justified on the basis of formal equality and individual responsibility

Same standard for everyone notwithstanding their distinctive personality traits and their varying capacities to meet that standard → we just hold everyone to the same standard

And people are individually responsible if they have the capacity to meet it and they fail to meet it

We assume capacity → so we say if they don’t have the capacity they have to raise the defences of insanity or whatever defences are available to them based on incapacity

Question 35

Personal characteristics of the accused:

Answer 35

•Subjective attributes of the accused (intoxication, mental impairment) are disregarded.
•The reasonable person is located in the particular circumstances.

For the reasonable person standard → we disregard the accused personal characteristics.

But we locate the reasonable person in the circumstances that the defendant was in

Some people argue that this is unfair → that the construction of the neutral hypothetical reasonable person is unrealistic → and that its deeply unfair because it basically privileges some people’s experiences and capacities and perspectives and values over other people’s

And some people can’t achieve that standard → particularly young people at this period of time → statistically proven that they take stupid risks and they dont think through the consequences and they think that the outcome is never going to happen to them

Leading cause of death for young men → at a particular point in time is → talking really stupid risks → thinking that they are not going to get the harmful consequences → just because of how their brains work at that period of time.

Some argue that we should modify the reasonable person test by some characteristics which are fair → so age for example is something some people argue is something we should modify the reasonable person by → because it is fair to expect different standards from 18 year olds than it is from 45 year olds for example.

Question 36

R v Hamer [2005] 2 NZLR 81 (CA):

Answer 36

•Test is objective: Educational, experiential and habitual factors personal to the accused cannot be taken into account
•There may be an exception for characteristics that made the defendant incapable of appreciating the nature and quality or the consequences of his acts or omissions
•Courts decision reserved on the application of the test in “unusual cases of disability” eg where the defendant blind or wheelchair bound

Our most Authoritative discussion of personal characteristics in relation to negligence → is probably R v Hamer

In which the Court of Appeal said → the test is objective → educational, experiential, habitual factors personal factors personal to the accused → aren’t taken into account.

But The Court said there may be an exception for characteristics that make the defendant incapable of appreciating the nature and quality or the consequences of their actions.

And it reserved the question of how we apply the test in unusual cases of disability → For example where the defendant is blind or in a wheelchair

The last example → where the defendant is blind or in a wheelchair → is easily resolved by just putting the hypothetical reasonable person in the circumstances of the defendant →

and the circumstances of the defendant are → the Case of Gedson → viewed from the perspective of the defendant → what the defendant knows about their circumstances → not the conclusion that they draw from those circumstances but what they know about their circumstances

If they are blind → they don’t have visual information → so their circumstances are without that visual information → so however they appear without that visual information

Same as if that person is in a wheelchair → that is the circumstance in which they are.

Not really a modification of the reasonable person test → just put the reasonable person in the circumstances the defendant was.

Question 37

R v Sam [2009] NZWSC 803:

Answer 37

•The attributes of the accused which could be taken into account were “objective matters which the evidence demonstrated attached to each accused.”
•These include age, experience (education and training) and the knowledge of the facts that the accused had
•Likely to include any sight or hearing impediments

•HLA Hart: Could the accused have taken precautions?
- R v Sam: “It was necessary that I keep steadfastly in mind the objective test which forms part of the elements of the crime of manslaughter by criminal negligence. The identification of features of each accused, which were to be attributed to the reasonable person in each case, must not have the effect of turning the required objective test into a subjective test.”

Some of the Courts overseas for example in NSW → have started to modify the objective test → to try and make it a little bit fairer

But still an objective test.

So for example in the Sam → the judge drew a distinction between attributes of the accused which were objective matters → like age, education, training, knowledge of the facts that they had, would include sight, hearing

And subjective attributes → their opinion about things,

Question 38

R v Sam:

Answer 38

•Disregarded are subjective attributes: “the personal beliefs, views or attitudes of the accused”.
• The judge disregarded the following feature: “there was ‘an Indian tradition of the mother living with her own mother for the first few months of the child’s life’”.

The Court said → we modify the reasonable person test by objective attributes

But it’s still a reasonable person test → say if we are talking about an 18 year old → we ask what would we expect of a reasonable 18 year old? In that set of circumstances → its not a subjective test → its a modified objective test

You disregard certain attributes → The personal beliefs, views, attitudes of the accused →

In this case there was an argued cultural tradition that the Court disregarded → they said that is a subjective attribute.

Our NZ Courts have been very clear → that we don’t modify our reasonable person standard in that manner.

Question 39

But (in another context) see Richardson J in Civil Aviation Department v Mackenzie [1983] NZLR 78 (CA):

Answer 39

“It would not in our view be appropriate to have a variable standard of negligence depending on subjective considerations affecting the individual concerned, as was suggested in argument at one point.”

Justice Richardson in Mackenzie → it would not in our view…

So ours is a uniform standard in NZ → Applied to everyone

Question 40

Mens rea and motive:

Answer 40

•Hyam v DPP [1961] AC 290 – motive is “the emotion which gives rise to the intention”
•Example, Barbara’s mother is dying of pneumonia (and leukemia). Barbara’s intention in putting a pillow over her face is to stop her from suffering by speeding up the process. Does Barbara have the mens rea for murder? See Leslie Martin case.
•But see R v Steane [1945] KB 997 (generally criticised for its application of the law – although perhaps the right outcome)

Question 41

A common law doctrine:

Answer 41

•The doctrine transfers the mens rea the accused actually possesses. It does not transform it: Chandler v Police [2010] NZAR 25

Transferred malice is a common law doctrine

We have seen it codified in Section 167 © of the Crimes Act

Common law doctrine that says → if you have mens rea directed at one person → and you accidentally get another victim → not the victim you had the mens rea directed at → your mens rea is transferred from your intended victim → to your actual victim

Ancient common law doctrine

NOTE: Mens rea that is transferred is the mens rea tha the accused actually has → it is not transformed in that process of being transferred.

Chandler is the case that is authority for the above point →

In the Chandler case → a guy was trying to assault another guy → and the intended victim’s girlfriend stepped in → thinking that possibly that he wouldn’t hit her because she was female

But he tried to hit her boyfriend and hit her instead

And he was charged with → being Male assaults a female → he was not trying to assault the girlfriend

The Court said he couldn’t be convicted of being male assaulting a female → He intended to assault a male → you couldn’t convict him of assaulting a female → That requires an intention to assault a female

So his intention was to assault a male → you transferred it over to the actual victim → it doesn’t transform it so that he suddenly has an intention to assault a female.

So what the Court did is it convicted him of common assault → rather than being male assaults a female.

Question 42

Transferred defences:

Answer 42

•A under attack by B
•A defends herself but accidentally kills C
•Self-defence transfers to unintended victim

We don’t have case law on defence transfer

But the thought is → that defences transfer as well →

If you have a defence against one victim → it transfers to another victim